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George v Ane [2023] PGNC 411; N10376 (19 June 2023)

N10376

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 47 OF 2022

PETER GEORGE Administrator of Deceased Estate of Late James Hess
Plaintiff

V
ALA ANE REGISTRAR OF TITLES
First Defendant

AND
BENJAMIN SAMSON SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 15^th June

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Order 16 Rule 3 (1) NCR – Statement Pursuant to Order 16 Rule 3 (a) NCR – Application for Leave – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit Verifying Facts – Affidavit of Applicant – Section 160 & 161 Land Registration Act 1981 – Compliance of – No Evidence – Material relied sufficient – Balance discharged – Certiorari Granted – Declaration Lies –Mandamus accorded – cost follow Event.

Cases Cited:

Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192

Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Counsel:

H. Babe, for Plaintiff
H. Wangi, for Defendant

DECISION

19^th June 2023

1. MIVIRI, J: This is the Decision on the plaintiff’s substantive notice of motion for judicial review of the decisions of the First Defendant of the 26^th June 2019 in cancelling the certificate of titles of the plaintiff over two portions of land described as:
   

(a) Volume 37 Folio 245 Portion 3404C, Milinch, Granville, Moresby, National Capital District; and

(b) Volume 37 Folio 246 Portion 3405C, Milinch, Granville, Moresby, National Capital District.

2. Plaintiff was granted leave to proceed ex parte on the 05^th August 2022. Amongst the orders made were that the leave granted operated as a stay of the decisions the subject of the proceeding. And that the plaintiff was to file and serve by the 12^th August 2022 the substantive notice of motion pursuant to Order 16 Rule 5 (1) of the Rules. And the requirements of the review book were dispensed and in its place affidavits and the statement in support filed by the plaintiff. And the matter was transferred or allocated to the judicial review track and matter was placed on the first call over or directions hearing list. That is now a year ago and still on the eve of the hearing today, the State was not in attendance, nor was there any appearance despite the notice of the hearing. And hearing back then was set on Wednesday 14^th December 2022 for trial but that again drew no appearance from the State. So, for all intent and purposes the State has simply by its conduct acceded to the contentions that have been raised here. Because this is a matter that originates from decisions that were made on the 26^th June 2019 by the defendants in particular the first Defendant. Given it is my view that the State has been given more than ample opportunity to be heard on the matter. It would not be erroneous to proceed to hear the matter given. And accordingly, I will hear counsel for the plaintiff in the substantive notice of motion filed.
   
3. This is the substantive notice of motion filed dated the 08^th August 2022 pleading for an order in the nature of a certiorari to remove into this Court and quash the First Defendants decisions made on the 26^th June 2019 in cancelling the plaintiff’s certificate of titles over two (2) portions of land described above. And declaration that the decision of the First Defendant in so effecting was null and void and of no effect. And that mandamus lies to compel him to reinstate the registration of the said titles to the land back to the plaintiff pursuant to Order 16 Rule 5 (1) of the Rules in all remedies pleaded.
   
4. The plaintiff has filed an affidavit dated the 28^th April 2022 sworn of the 27^th April 2022. He is the administrator of the Deceased Estate of late James Hess. He has personal knowledge of all facts pertinent and relevant to the cause. And the subject portions of land were part of a large portion of customary land known as Masto. And a survey “PGI” is annexure. It was owned by one Avia Morea Taboro the only daughter of late Morea Taboro recognized principle customary land chief of the Gorobe Kae Clan of Pari village, Central Province per Commissioner Gile’s native land commission determination No. 26 of 1964.
   
5. On the 18^th November 2013 the late James Hess and Avia Morea Taboro executed “PG2” a formal contract for sale of the land for the purchase price of K20, 000.00. Late James Hess paid in full the K20, 000.00 and then engaged surveyors to do a survey of the land assigning it Cat, No. 49/3389. It is clear by this evidence trailing a process in law to acquire the subject land. And in this regard at annexure “PG7” is a letter from the Office of the Registrar of Titles addressed to James Hess c/-Win & Win Attorneys at Law dated the 29^th November 2018. The subject is Summons to Deliver of certificate of titles Volume 37 folio 245 over Portion 3404C Milinch Granville, NCD and Volume 37 Folio 246 over portion 3405C Milinch Granville, NCD. It is issued by Benjamin Samson Registrar of Titles under section 160 (1) of the Land Registration Act 1981 summoning the production of the original certificate of title of that land Volume 37 folio 245 over Portion 3404C Milinch Granville, NCD and Volume 37 Folio 246 over portion 3405C Milinch Granville, NCD to him for the purpose of cancellation.
   
6. And he details the reason for so doing as, “the said parcel of land is that the titles were issued wrongly as they are before the local land Court proceeding styled LLC No 013 of 2018. In addition, there is no section 15 of the Land Tenure Conversion) Act 1963 (as amended) notice from the Land Titles Commission. Consequently, your title cannot be protected under section 33 of the Land Registration Act 1981. Representation has been made to this office by Gorobe Kae Incorporated Land Group after the Local Land Court was presented by copies of titles. It is evident that the subject portion of Land is being disputed hence the proceedings before the Courts. The Courts further to that ordered that the Department of Lands be restrained from dealings with Portion 3404C Milinch Granville, NCD. In addition, title files retrieved show that there was no section 15 of the Land (Tenure Conversion) Act 1963 (as amended) whereby the Commission forwards the conversion order to the Registrar of Titles for registration of the certificate of title. The document submitted was not proper and may amount to fraud.
   
7. Having stated the reason above, and the powers vested in me under section 161 of the Land Registration Act 1981 (Chapter 191), I summon you to produce the certificate of titles Volume 37 folio 245 and Volume 37 Folio 246 to this Office for cancellation. Take further notice that you are given 14 days from the date of this notice to do so. Failure to comply with this notice will result in appropriate actions taken under the land Registration Act 1981.”
   
8. Section 160 “Production of Instruments wrongly issued” of the Land Registration Act has been relied as basis upon which the Registrar has summoned the plaintiff. He has not made any appearance pursuant which has given the Registrar the basis to cancel the subject title to that land in question. There is no evidence that the Registrar has applied to the Court to secure attendance of the plaintiff by summons settling section 160 (2) of the Land Registration Act. There is no evidence that the plaintiff has failed to attend by that summons and therefore a warrant has been issued for his arrest to ensure his attendance in Court as per section 160 (3) of the Act. And there is no examination of the plaintiff in court pursuant to section 160 (4) of the Act. Nor is this a case where section 160 (5) of the Act has landed the plaintiff in jail. It is not the case that the plaintiff has been kept out of the way making it impossible for the service of the summons upon him to secure his attendance under section 160 (6) Land Registration Act.
   
9. Related section is 161 Cancellation and correction of Instruments and entries. Here an instrument delivered under section 160 maybe corrected or cancelled by the Registrar. So effectively this was a case of getting the instruments in both instances to correct as there was evidence appearing sufficient to correct the error or the omission apparent. That is not the case here. And there is simply no evidence from the defendants in particular the office of the Registrar of titles evidencing that this is indeed the case for the summoning of the certificates in each case of the two parcels of land. Since the filing of this proceedings set out above, there is no evidence forthcoming from this office, the defendants justifying the steps taken to comply with section 160 and 161 of the Land Registration Act in respect of both parcels of land.
   
10. This is Land registered followed through by a process in law to acquire. It must in similar terms be through that process to be deregistered. The certificate of title registered in both instances Volume 37 folio 245 over Portion 3404C Milinch Granville, NCD and Volume 37 Folio 246 over portion 3405C Milinch Granville, NCD issued the plaintiff must be taken off through the process set out by section 160 and 161 of the Land Registration Act. It is a complete process transparent and accountable. In this regard it is not enough to summon and cancel without hearing the plaintiff summoned in court. The service of the summons must result in the appearance of the plaintiff in court in answer to it. Here there is a distinction in the summons that is issued by the Registrar. And the summons issued by Court. The latter is an order and must be complied with regardless. In both instances there is no evidence of one or the other being fully exhausted. The Registrar did accord the plaintiff, but it did not culminate further in court for a summons at his plea before the Court for the plaintiff. That never happened. There he must be accorded an opportunity to be heard of the intentions to cancel the certificate of title on the subject parcels of land. Real opportunity must be accorded not mere paper trail which is the case here. Because there is no evidence that the plaintiff was summoned in Court. This is now the law: Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 (28 January 2022) and must be followed.
    
11. It has not been the case here and so there is error in the procedure taken to cancel the certificate of title of the plaintiff on the subject land both Volume 37 folio 245 over Portion 3404C Milinch Granville, NCD and Volume 37 Folio 246 over portion 3405C Milinch Granville, NCD. Accordingly, certiorari lies in that the decision of the Registrar of Titles the First Defendants decisions made on the 26^th June 2019 in cancelling the plaintiff’s certificate of titles over two (2) portions of land described above is brought into Court and quashed forthwith.
    
12. Further it is declared because of this error in the procedure that the cancellation of both certificates of title in each case were null and void ab initio. And so, Mandamus lies so that the First Defendant is compelled to reinstate the registration of the said titles to the land back to the plaintiff pursuant to Order 16 Rule 5 (1) of the Rules: Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995 (13 March 2020). Here the materials that are set out above warrant that mandamus lies for the Registrar of titles the First defendant to reissue the certificates of title to the subject two portions of land registered in the name of the plaintiff. And in my view, this is not out of the ordinary as observed also in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That was not specifically for mandamus but likened in the case of employer employee. But the actions of the First defendant the Registrar of titles have no reasons as to why he acted the way he did cogent to sustain his decision. It has been vitiated and will be accorded in the terms of the Notice of Motion in favour of the plaintiff.
    
13. The formal orders of the court are:
    
    • (1) The plaintiff’s Substantive Notice of Motion is granted as pleaded.
      
    • (2) Certiorari is granted to bring into this Court the decision of the Registrar of Titles the First Defendant made on the 26^th June 2019 in cancelling the plaintiff’s certificate of titles over two (2) portions of land described as; -
      

(a) Volume 37 Folio 245 Portion 3404C, Milinch, Granville, Moresby, NCD, and

(b) Volume 37 folio 246 Portion 3405C, Milinch, Granville, Moresby NCD

are brought into Court and quashed forthwith.

(3) It is Declared that the decision of the Registrar of titles, the First Defendant in cancelling the certificates of titles of the two portions of land described as;

• (a) Volume 37 Folio 245 Portion 3404C, Milinch, Granville, Moresby, NCD, and
  

(b) Volume 37 folio 246 Portion 3405C, Milinch, Granville, Moresby NCD

is null and void ab initio.

(4) And Mandamus lies and is granted to compel the Registrar of titles the First defendant to register and reissue the certificate of titles to the subject land; -

(a) Volume 37 Folio 245 Portion 3404C, Milinch, Granville, Moresby, NCD, and

(b) Volume 37 folio 246 Portion 3405C, Milinch, Granville, Moresby NCD,

in the name of the plaintiff forthwith.

(5) Costs will follow the event.

(6) Time for entry of this order is abridged to the date of settlement which takes place before the Registrar forthwith.

Orders Accordingly.

__________________________________________________________________

Hebrew Babe Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendant